XARK 3.0

Xark began as a group blog in June 2005 but continues today as founder Dan Conover's primary blog-home. Posts by longtime Xark authors Janet Edens and John Sloop may also appear alongside Dan's here from time to time, depending on whatever.

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Wednesday, February 22, 2012

SCOTUS outlook, 2012-16

It's been a weird couple of weeks in American politics, with Republicans claiming that an insurance rule that applies to religiously affiliated institutions is tantamount to an assault on First Amendment religious liberty (despite a guiding Supreme Court precedent from 1993, written by Associate Justice Antonin Scalia, that argues otherwise), followed by a series of bizarre public statements by nominal GOP front-runner Rick Santorum. Clearly the conservative idea of a culture war has returned to contend for our national attention, and will likely continue to receive bandwidth so long as the economy keeps getting better.

Which brings us to another under-discussed issue in the 2012 Presidential election: U.S. Supreme Court appointments.

In 2012, the Roberts Court is made up of nine justices between the ages of 51 (liberal Elena Kagan) and 78 (liberal Ruth Bader Ginsberg). Four of the nine are appointees of Democratic presidents (Kagan and Sondra Sotomayor, Obama; Ginsberg and Stephen Breyer, Clinton) and five were appointed by Republicans (Chief Justice John Roberts and Samuel Alito, Bush; Clarence Thomas, George H.W. Bush; and Anthony Kennedy and Scalia, Reagan).

Despite the Roberts Court's reputation for partisan division, only about 20 percent of its decisions have come on 5-4 votes. But here's the thing about those votes: Its close decisions have tended to be about the kinds of political and philosophical issues that concern voters, rather than arcane rulings on the finer points of law. It's not that the court is sharply divided on everything -- it's just divided on the really important things. Like the Citizens United ruling, in which all five Republican-appointed justices voted together.

When it comes to those kinds of decisions, the Roberts Court looks depressingly predictable. In 14 of the last 16 5-4 votes, Democratic nominees (Kagan, Sotomayor, Ginsberg and Breyer) have been on one side, and four of the five Republican nominees (Roberts, Alito, Thomas and Scalia) have been on the other, leaving Reagan appointee Kennedy to cast the decisive vote. Not that Kennedy is an equal-opportunity swinger. He decides in favor of the Republican justices more than 60 percent of the time.

Which brings us to the question: How many appointments is the 2012 Presidential winner likely to receive, and more importantly, what effect are they likely to have on the court and the country?

Barring the usual boilerplate about health and personal conscience, it's safe to say that none of the Justices who will be younger than 70 in November 2016 are likely candidates to step down. Only one of the nine justices that the current justices replaced was younger than 70 (the enigmatic David Souter, who resigned in 2009 at age 69). The other predecessors of the current crop of justices were 75, 76, 79 (two of them), 80, 83, 85 and 90 when they either stepped down or died in office. That's an average retirement age of 79.

By this standard, we need only consider four justices as possible candidates for replacement: Breyer, 73; Scalia, 75; Kennedy, 75; and Ginsberg, 78. Three of the four will be 79 or older in 2016.

Of this group, only two-time cancer survivor Ginsberg should be considered likely to be replaced before 2017. Should President Obama win re-election and the right to nominate her replacement, her departure would have little effect on the court's composition -- though her replacement by a conservative justice would almost certainly produce an unbreakable five-member conservative block -- with Kennedy serving only as an unnecessary sixth vote.

However, if we take history as a guide, then there's probably at least a 50 percent chance that the Presidential winner in November will get a second appointment, probably from one of those other three seventy-something justices. And if that justice turns out to be either Scalia or Kennedy and that President is Obama, then we're looking at the first major ideological shift on the court since Clarence Thomas replaced Thurgood Marshall in 1991.

Weirdly enough, every justice on the Roberts Court except Thomas replaced an outgoing justice with whom he or she was generally aligned in ideological terms. Even Kennedy replaced a swing voter in Louis Powell back in 1988.

So as you think ahead to November, remember that it's not just the number of appointments that matters, but how a candidate's appointments would affect the makeup of the court. Then consider these two scenarios:

If President Obama wins, the result will likely be a 5-4 liberal majority, or at worst, a continuation of the status quo.

If a Republican wins, the conservative block will grow from four votes and a conservative-leaning swing voter to an ideological 6-3 majority that could endure well into the 2030s.

Now imagine the caliber of nominee that a President Santorum might put forward.

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"Weirdly enough, every justice on the Roberts Court except Thomas replaced an outgoing justice with whom he or she was generally aligned in ideological terms."

First of all, that's not entirely true. Alito replacing O'Connor moved the court significantly the right, as the fulcrum moved from O'Connor to Kennedy. One could also argue that Ginsburg moved the court to the left when she replaced White.

Second, it's not actually that weird. Over the past few decades, justices have made a conscious effort to wait until a president who was a partisan and/or ideological ally arrived in the White House before announcing their retirement. The exceptions came under George H.W. Bush, when two superannuated liberal justices (Brennan and Marshall) were unable to wait out GOP control of the White House after the Democrats lost three elections in a row. Liberals just got lucky that Souter turned out to not be as conservative as Bush thought he would be. Not only did that mean liberals gained an extra justice, it also meant that Souter retired under a Democratic administration rather than waiting for a Republican one.

And by the way, don't be at all surprised if, for that exact reason, the older conservative justices (Scalia and Kennedy) stubbornly hold on to their seats even if Obama's re-elected. It may take a third Democratic win in 2016 to really move the Court leftward.